EEL News Service Issue 2011/3 of 28 April 2011

This reference for a preliminary ruling was made out of eleven joined procedures at the French Conseil d’État (Council of State) and concerned a ban issued by France on cultivation of the GMO corn crop MON810. Advocate General Mengozzi found that the procedure for emergency measures under art. 23 of Directive 2001/18/EC relating to the deliberate release into the environment of GMOs was not applicable. Instead, Regulation EC 1829/2003 on Genetically Modified Food and Feed applied in his view.

The AG further found that as a consequence, emergency protective measures could only be taken under art. 34 of Regulation EC 1829/2003. The latter provision stipulates that emergency measures can be taken where “it is evidentthat products (…) are likely to constitute a serious risk to human health, animal health or the environment” (emphasis added). By comparison, art. 23 of Directive 2001/18 would have allowed for emergency measures if a Member State had “detailed grounds for considering that a GMO (…) constitutes a risk to human health or the environment” (emphasis added). After considering that both provisions form an expression of the precautionary principle, and considering the explanation given to that principle by the ECJ and in EU legislation, the AG concluded that emergency measures, whether based on the directive or the regulation (and despite of their differences in wording), can only be taken in cases where the risk is considerable (which Mengozzi explains as a situation in which there exists more than a hypothetical risk of damage to the health of people, animals or the environment) and if the probability of damage occurring is not minor, even if it cannot exactly be determined (“a certain degree of uncertainty can remain”). The precautionary principle, however, tells that precautionary measures can be taken in cases where science is not (yet) able to assess the probability of the risk at hand. A hurdle demanding that the probability would need to be established at least partially contradicts the essence of the precautionary principle.

This reference for a preliminary ruling was made in proceedings between a Romanian national (Mr. Tatu) and the Romanian State concerning a pollution tax that Mr Tatu had to pay to register a second hand motorcycle purchased in Germany. For motorcycles that are already registered in Romania – i.e. ‘domestic products’ – such a tax is not applicable. The European Court of Justice noted that the objective of protection of the environment by the pollution tax was legitimate but could have been achieved more completely and consistently by imposing the pollution tax on all similar vehicles in circulation in Romania, rather than only on vehicles from a third state. In this way, the tax will favor domestic products and is therefore in breach of EU law.

This preliminary ruling is related to proceedings between two Italian companies seeking to build wind turbines in a designated protected area and the Administrative Tribunal of the Regione Puglia (Italy). The two companies were refused authorization to build wind turbines on land forming a part of the Alta Murgia National Park and the ecological network Natura 2000.

The Advocate General concluded that Directive 2001/77/EC on the promotion of electricity produced from renewable energy sources and Directive 2009/28/EC on the promotion of the use of energy from renewable sources, as well as the Birds Directive and the Habitat Directive do not preclude the adoption by a Member State of more stringent national measures prohibiting the construction of wind turbines on a Natura 2000 site, provided that such a prohibition is not contrary to the principle of equal treatment and that it does not go beyond what is necessary to achieve the objective pursued.

The German Bundesverwaltungsgericht (Federal Administrative Court) is seeking guidance on the obligation under Directive 96/82/EC on Chemical Accidents (Seveso II) to ensure that planning policies are drawn up so as to take account of the need to maintain appropriate distances between potentially dangerous establishments and public areas. At issue is a garden centre to be built in the vicinity of industrial premises. Most significant was the question whether this obligation also applies to individual planning decisions. The AG concluded that for individual planning purposes and individual projects an obligation exists to take into account the need that a suitable distance is kept, and that authorities must have regard to factors such as the presence of existing buildings in the vicinity, the fact that the project will lead to increased frequentation of the area and whether it will impose greater safety requirements on potentially dangerous establishments that are already present in the area.

On the 6th of April 2011 the EU published two new Voluntary Partnership Agreements (VPAs) regarding the fight against illegally logged timber with Cameroon and the Republic of Congo. Discussions with several other countries are underway. Licensed timber as per the agreements is expected to enter the EU market later this year. Verification and tracking systems will be established for legally logged timber in the countries that have signed the VPAs and all timber destined to the EU must be licensed accordingly.

On 6 April 2011 the European Commission announced a round of infringement proceedings against the Member States. The package of infringement proceedings is directed to a total of 11 countries that according to the Commission were in breach of EU environmental legislation. The Commission found that Austria and Spain have outdated permits for industrial installations (concerning respectively 21 and 100+ industrial plants). Belgium is failing to comply with air quality limits. Belgium, Denmark, Greece and Portugal failed to comply with EU water legislation and failed to submit plans for managing their river basins. In the UK environmental litigation costs are prohibitively expensive. All states are now facing cases against them in the European Court of Justice as well as fines.

A Dutch multi-fuel power plant at Eemshaven Netherlands has committed to legally enforceable Emissions Performance Standards (EPS) with several NGOs. EPS policy gained momentum in the last few years. An EU wide EPS policy was proposed by the EU Parliament but rejected by the Council in 2008. The option to implement EPS schemes in the individual Member States is however still open.

In the agreement signed by Eemshaven Netherlands a requirement was taken up for the utility to limit its CO2 emissions for the coal fired section of the plant, as well as an agreement that operation of the plant will not begin before 2020. Furthermore, the agreement contained a commitment by the NGOs to drop any legal objections to the gas-fired part of the plant. One of the major contentions of the NGOs was that coal fired plants are the most carbon polluting energy production method and therefore do not conform to modern aims of limiting greenhouse gas emissions. The limitations on CO2 emissions under the EPS would result in less than half of the emission levels for a regular coal fired power plant and the equivalent of a gas fired plant (no more than 360 gram per kilowatt hour).

After two years of decrease in carbon dioxide emissions in Europe, the EU emission trading scheme (ETS) seems to indicate that CO2 emissions have risen again in 2010. Some installations have still to submit their data and the Commission has not prepared an analysis as the relevant data has not yet been verified. However, Point Carbon, an energy and environmental oriented media company, performed an analysis on the preliminary data and predicted that emissions increased from 2009 to 2010 by approximately 3%. The data suggests that European industry is about to recover. Nevertheless, recovery is not uniform as emissions varied considerably between sectors. Of all the countries that reported emissions, only Spain, Portugal and Romania reported a decrease in emission levels from 2009 to 2010.

On 12 April 2011 the European Parliament Environment Committee voted on amendments to a Commission proposal as regards the possibility for the Member States to restrict or prohibit the cultivation of GMOs in their territory (COM(2010)0375). The amendments will expand legal grounds for bans taken independently by Member States on cultivation, within their territories, of genetically modified (GM) crops. Legal justifications for States to restrict GM crop cultivation should be either on the basis of ‘public order’ or ‘environmental policy’ as per the amendments and then these bans could be justified even if the relevant GM crops are permitted within the EU.

The addition of public policy and environmental policy objectives is intended to shield possible legal challenges on the basis of WTO commitments. The environment MEPs insist that as long as restrictions are proportionate and non-discriminatory they would be permissible. Others however, including Britain’s farm Minister Caroline Spelman, have warned that they could result in direct violations of WTO law. The proposed policy of the Commission is meant to reduce tensions surrounding the lack of compliance with GM legislation but the new amendments also have a polarizing effect, with some States in favor and others opposing the idea of a broader scope for individual GM restrictions.

On 6 April 2011 the Spanish minister for public works has announced a transport plan aimed at a substantial reduction of CO2 emissions by 2012. The plan should save 11.5 billion Euros and substantially reduce CO2 emissions. This is to be achieved principally through switching from road transport to rail and water transport for freight shipments. Switching to rail and water transport would be in line with the EU strategy reflected in a White Paper issued by the Commission on the 28th of March and titled: ‘Roadmap to a Single European Transport Area’. If the plan is implemented, the decrease in total Spanish emissions may however not be as dramatic as hoped since current plans for coal subsidies mined in Spain will likely increase Spanish emission levels fundamentally in the coming years.

From junk to product – Criteria for when scrap metals cease to be waste

On 31 March 2011 the Waste Framework Directive (2006/12/EC) has been amended to include criteria for determining when scrap iron, steel and aluminum ceases to be waste and becomes a product for the purposes of EU law. Criteria for copper, paper, glass and compost are still being negotiated. The member States did however find agreement on some end-of-waste criteria for scrap metals. This means that some of these scrap metals which are clean and safe do not need to be classified as waste. The end-of-waste criteria are intended to stimulate recycling markets within the EU.